English Legal System Essentials [11] Flashcards
English Legal System Essentials
What are the three principal sources of English law? [1]
There are three principal sources of English law: (i) Common law; (ii) Equity; and (iii) Legislation. The application of legislation is underpinned by the Common law and the rules of Equity.
English Legal System Essentials
Explain what is meant by the doctrine of judicial precedent [1]
The common law is based on judicial precedent, meaning that cases should be decided in the same way when their material facts are the same.
To determine whether a particular decision applies to a case, it may be is necessary to examine the potentially binding case in terms of its Ratio decidendi, and it Obiter dictum
English Legal System Essentials
Explain what is meant by the principle of ‘ratio decidendi’ [1]
Ratio decidendi is the rationale for the court’s decision in a judgement, meaning the essential elements of a judgement which create binding precedent, and must therefore be followed by inferior courts, unlike obiter dicta, which do not possess binding authority. Also known as ratio.
English Legal System Essentials
Explain what is meant by the phrase ‘obiter dictum’ and whether it is judicially binding [1]
Obiter dictum (literally: “other things said”) is a statement of law based on facts of a case, but which does not form the basis of the decision. (For example, it may be a statement on which a dissenting judgement is based).
As the obiter dicta does not form the basis of the judgement, they are only persuasive in subsequent courts and not binding.
English Legal System Essentials
In what circumstances will the Court of Appeal be bound by its own decisions? [1]
The Court of Appeal will normally be bound by its own decisions, unless those decisions were made per incuriam (i.e. ‘by error of the court’) because, e.g. because it failed to take account of a binding authority).
N.B. The Court of Appeal will also be bound by the decision of the Supreme Court.
English Legal System Essentials
When must a claim be issued to the High Court as opposed to a County Court? [1]
If the value of the claim exceeds £100,000.
English Legal System Essentials
Are English courts still bound by the Court of Justice of the European Union? [1]
With the UK’s withdrawal from the EU, the Court of Justice of the European Union (CJEU) will no longer have direct jurisdiction over the UK and the UK courts will no longer be obliged to give effect to EU law above domestic law (except to the extent specified by the UK-EU withdrawal agreement in which, after the end of the transition period, the CJEU has jurisdiction and UK courts can refer cases to the CJEU)
English Legal System Essentials
Explain the significance of section 3 Human Rights Act 1998? [1]
Under s.3 of the Human Rights Act 1998, which came into force on 2 October 2000, the courts must interpret all legislation (whenever it was enacted) in a way which, as far as possible, is compatible with the rights under the European Convention on Human Rights.
English Legal System Essentials
What tax-raising powers does Scotland have? [1]
Tax raising powers devolved to Scotland include (not exhaustively) the following areas of taxation: (i) local taxation (include council tax and business rates for Scotland); (ii) Land and Business Transaction Tax (which replaced SDLT in Scotland); and Scottish income tax rates (which HMRC remain responsible for administering).
N.B. Following the Acts of Union 1707, Scotland has shared a legislature with the rest of the United Kingdom. However, Scotland retains a fundamentally different legal system from that of England and Wales. Now, although technically the Parliament of the United Kingdom retains full power to legislate for Scotland, under the Sewel convention it will not legislate on devolved matters without the agreement of the Scottish Parliament.
English Legal System Essentials
What tax-raising powers does Wales have? [1]
Following the Wales Act 2014, tax raising powers devolved to Wales include a devolved Welsh Land Transaction Tax (LTT), and a Landfill Disposals Tax (a tax on the disposal of waste to landfill). The Welsh government also established the Welsh Revenue Authority (WRA) to administer these devolved taxes.
The Welsh Assembly can also pass laws in respect of non-domestic rates (i.e. business rates) and council tax. These are classed as local taxation rather than devolved taxes.
Income tax rates may also now be set by the Welsh Assembly but have yet to differ from the rate that applies to England.
English Legal System Essentials
What tax-raising powers does Northern Ireland have? [1]
The Northern Ireland Assembly can pass laws in respect of local taxation: domestic rates (Northern Ireland’s equivalent of council tax) and non-domestic (business) rates. A law has been passed providing for the devolution of corporation tax powers to the Northern Ireland Assembly, but this is subject to commencement regulations. Northern Ireland had intended to set its own rate of corporation tax from April 2018 but, as of yet, the rate continues to be in line with England’s corporation tax rate.
